The surprises kept coming in the ongoing presidential battle between Al Gore and George W. Bush
Al Gore’s political obituaries were already written. Voices in his own party were hinting that it was time for him to do the decent thing and concede defeat. Sage analyses of the coming George W. Bush administration were taking shape. Republicans in the Texas governor's capital, Austin, were gearing up for a long-delayed victory rally. Stick a fork in Gore, went the wisdom in Washington, he’s done.
Then, in a post-election saga that has been marked only by its unpredictability, yet another unforeseen twist. Gore, his back against the wall, was handed a Houdini-like escape from final legal defeat in his quest for the U.S. presidency. It came from the Florida Supreme Court, which by a bare majority of four votes out of seven reversed a lower court decision and ordered an immediate manual recount of tens of thousands of disputed ballots. Suddenly, Gore had a shot at overcoming Bush’s tiny lead in the state and claiming its 25 electoral votes—enough to give him the White House.
But not for long. Less than 23 hours later, the U.S. Supreme Court stepped in and turned the tide once more— ordering a halt to the recount and scheduling a full hearing on the issue for Monday, Dec. 11. It was an ominous move for Gore. By five votes to four, the federal high court signalled clear doubts about the wisdom of what the Florida court had decided. If it follows that logic this week, it could finally crush the vice-president’s hopes and bring an end to the longest-ever presidential election.
What the Florida court ordered was the same thing that Gore’s camp had been seeking for a month—a manual count of disputed ballots that it clearly believes will tip the election to the vice-president. That got under way the morning after the court’s ruling, as nine judges in Florida’s capital, Tallahassee, began painstakingly examining 9,000 punch-card ballots from Miami-Dade county. They were examining so-called undervotes—ballots that are otherwise valid but did not register a vote for president in previous machine counts. Across the state, another 36,000 undervotes were also to be examined by hand. The margin Gore needed to overcome was tinier than ever: the Florida court also ordered that an extra 383 votes for Gore be included in the state’s official vote count—cutting Bush’s lead to just 154 out of six million cast.
The post-election legal fight in Florida had already stoked partisan feelings and cast a shadow over the political legitimacy of whoever eventually succeeds Bill Clinton in the White House. But the message from politicians on both sides last week was: you ain’t seen nothin’ yet. Republicans, convinced that they had successfully held off Gore’s dogged legal challenges and counting on a new Bush presidency, reacted with outrage to the ruling from the Florida high court, long seen by conservatives as a partisan, activist body dominated by Democratic appointees. Tom DeLay, majority whip in the House of Representatives and an uncompromising Republican right-winger, denounced the Florida court: “This judicial aggression must not stand.”
The result: 31 days after Americans went to the polls to (they thought) elect their 43rd president, the stage was set for increasingly incendiary scenarios—unless the federal Supreme Court ends Gores chance this week. Deadlines are fast approaching, starting early this week. States must name their members of the electoral college by Tuesday, Dec. 12, or they are subject to challenge by the U.S. Congress. As a result, Florida’s Republican-dominated legislature planned to meet this week in an unprecedented special session to name its own slate of electors if the outcome in the state is still unclear. If the manual recount resumes and Gore pulls ahead, that could lead to what Washington politicians have dubbed the “nuclear scenario”—competing slates of electors from Florida, one pledged to Bush, another to Gore.
When electors meet on Dec. 18 to cast their votes for president, there could be two conflicting tallies. And so the presidential election could remain up in the air for weeks to come—and eventually have to be settled by the U.S. Senate and House of Representatives in Washington. They are to meet on Jan. 6 and officially count the electoral votes. If there is a disputed result from one state, both bodies would have to vote on which result to accept. The House has a narrow Republican majority and would back Bush’s electors, but the new Senate will be divided 50-50 and a tie there would, in principle, be broken by Gore himself in his capacity as president of the Senate. A deadlock between the two branches of Congress might then have to be broken by the U.S. Supreme Court—but only after more weeks of bitter feelings and just days before the new president is scheduled to be sworn in on Jan. 20.
That’s still a long way off—but it went instantly from speculation to real possibility as soon as Florida’s Supreme Court announced its verdict. The court had already played a controversial role in the ongoing drama: in an earlier ruling on Nov. 21, it tilted towards Gore by extending a deadline for manual recounts of some ballots. But the judgment of its majority late Friday went much further. It ordered a manual recount of the 9,000 “undervotes” from Miami-Dade county. The Gore camp contends that a careful examination of those ballots will show that many voters did intend to cast a vote in the presidential contest but failed to completely punch through the part of the card set aside for the presidential vote. Analyses by independent observers have concluded that Democrats are more likely than Republicans to fail to punch the cards cleanly (seniors, for example, are disproportionately Democrats), suggesting that a manual count might well tip the balance towards Gore.
But the Florida court gave little guidance on the biggest controversy of the entire post-election saga: what exactly constitutes a vote? The court’s majority said that votes should be counted when “the clear indication of the intent of the voter” can be determined. But earlier recount efforts in several Florida counties led to a welter of conflicting standards. For example, should ballots with so-called dangling or dimpled chads be included? Local election boards wrestled with those issues for days—and the new statewide recount seemed headed for the same kind of dispute.
Not surprisingly, Bush’s camp moved immediately to stop the recount. His lawyers went to the U.S. Supreme Court in Washington, successfully winning the emergency order to stop the new recount. And they emphasized the stark division within the Florida high court itself. Its chief justice, Charles Wells, found himself in the minority, strongly opposing the four judges who ordered the recount and warning of dire consequences ahead. The majority’s judgment, Wells wrote ominously, “propels this country and this state into an unprecedented and unnecessary constitutional crisis.”
Gore still has to beat the odds. Bush’s lawyers could persuade the U.S. Supreme Court to overrule the Florida court this week. Even if that doesn’t happen, Bush has several backstops in his fight for the presidency—including Florida’s Republican-dominated legislature and his own brother, Jeb, who as governor could have a deciding voice in which electors speak for Florida’s voters. But the federal Supreme Court’s action in stopping the recount suggested that things might not go that far after all. E3
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